The Senate might clear the biggest roadblock Trump faces in cementing a key part of his legacy

The Senate is
engaged in a fierce battle over the future of the "blue slip"
process.It's one of the few pieces of leverage the party that
doesn't control the White House has over judicial nominations -
which President Donald Trump is making at rapid pace.Republicans who spoke of the value of the practice when
President Barack Obama was in office are now seeking for it to
be slightly curtailed.

A massive battle has erupted in the Senate over the future of
what is known as the "blue slip" process, and its resolution will
most likely have a defining effect on President Donald Trump's
efforts to remake the federal judiciary.

The blue slip is a tradition in which US senators can give or
withhold their blessing for a judicial nominee from their state.
The process gives the party that does not control the White House
leverage over a good number of the president's nominations.

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The
process is intended to provide a more bipartisan consensus on
judges who will serve in or represent a senator's home state,
encouraging communication between the White House and home-state
senators before a nomination. But the opposition party has
sometimes used the blue-slip process to stonewall nominations and
prevent the president from naming judges in their states.

That could be a big concern for Trump, who has been moving at a
breakneck pace to secure what one Democratic senator
called "the single most important legacy" of his
administration. With Trump's legislative agenda stalling even as
his party controls both chambers of Congress, judicial
nominations provide a way for the president to achieve something
consequential early in his presidency.

With Democrats now having the ability to - in many states -
prevent Trump's judicial nominees from advancing, Senate Majority
Leader Mitch McConnell told
The New York Times last week that he thought the blue-slip
practice should be scrapped for circuit-court nominations.

"My personal view is that the blue slip, with regard to
circuit-court appointments, ought to simply be a notification of
how you're going to vote, not the opportunity to blackball,"
McConnell told The Times, adding that he still favored keeping
the practice in place in its current form for district-court
judges.

But whether or not that tradition is followed is not up to
McConnell. It comes down to whether the Senate Judiciary
Committee chairman, Chuck Grassley, decides to stick with the
process.
Speaking with The Washington Times last week, Grassley said
he hadn't made up his mind, telling the publication, "You need to
ask me in a month."

Despite what McConnell says now, Republicans argued in favor of
honoring the blue-slip process when they didn't control the White
House. A Democrat-led Judiciary Committee honored their wishes.

Several circuit-court vacancies were left open for years by the
end of President Barack Obama's second term because Republican
senators refused to return blue slips and advance his nominees.
Though the denial of blue-slip approval does not legally bar a
judge from being approved, both Democratic and Republican leaders
of the Senate Judiciary Committee have honored the process,
declining to advance nominees when home-state senators refused to
provide their approval.

And now, with Republicans in the White House, Democrats hold the
cards.

'It isn't an invitation to thwart the president's power to
nominate'

Sen. Mike Lee, of Utah, a Republican member of the Judiciary
Committee, told Business Insider in a statement that the
blue-slip process "should be used to prompt consultation between
the Senate and the White House" but that it "isn't an invitation
to thwart the president's power to nominate."

Numerous conservatives have taken issue with the blue-slip
process recently, saying Democrats are using it just to stonewall
the president.

Carrie Severino, the chief counsel of the Judicial Crisis
Network, a group that has gone to bat to defend Trump's nominees
with large ad buys, told Business Insider in a recent interview
that the practice "is not something" Democrats "can be allowed to
abuse." She added that Democrats "are trying to create a
filibuster of one."

caption

Mike Lee.

source

AP

Democrats, on the other hand, have pointed to hypocrisy on behalf
of Republicans who touted the blue-slip process while Obama was
president. They have also insisted they are using the process not
to obstruct the president but to ensure both that nominees be
properly vetted and that they are consulted on nominations from
their states.

Democratic Sen. Chris Coons, of Delaware, a member of the
Judiciary Committee, told Business Insider that the blue-slip
process had historically been "followed by members of both
parties" and "ensures senators are consulted regarding nominees
for seats from their home states."

"Judges are appointed with lifetime tenure, so it is critical
that senators have the ability to secure judges for their home
states that are qualified for their positions," Coons said.

"This isn't a partisan issue, either - this allows Republican
senators to prevent Democratic presidents from confirming
unqualified or inappropriate judges for their home states, and
vice versa," he continued. "The blue-slip process encourages
bipartisanship, too, and it increases the chances of consensus
candidates. Ending the blue-slip process would diminish the
ability of senators to provide input based on the local needs of
their states, making it increasingly difficult for the Judiciary
Committee to function in a bipartisan way."

Pointing to past statements from McConnell and other Republicans,
Democratic Sen. Sheldon Whitehouse, of Rhode Island, a Judiciary
Committee member, told Business Insider in a statement that the
practice "ensures that home-state senators and the people they
represent can weigh in on the judges who will serve them."

"Republicans, Leader McConnell and Chairman Grassley among them,
have taken advantage of this tradition for decades," Whitehouse
said. "People who claim to be Senate institutionalists should not
engage in wholesale destruction of Senate traditions just for
immediate partisan advantage."

Democratic Sen. Dianne Feinstein of California, the ranking
member on the Judiciary Committee, has issued multiple statements
over the summer taking aim at those on the right who chastised
the blue-slip process.

"I want to set the record straight with respect to blue slips,"
she said in a July statement. "The blue slip has been used since
1917 and history is being misrepresented in a brazen attempt to
destroy the Senate's prerogative to 'advise-and-consent' on
judicial nominees. ... It was always honored during the Obama
administration - even when Republicans did not return blue slips
for up to two and a half years."

"The bottom line is that no circuit-court nominee has been
confirmed without two blue slips from home-state senators since
at least 1981," she added. "As far as this senator is concerned,
no senator should be chastised for thoroughly vetting nominees
using a tool that's been around for 100 years."

Feinstein took issue with organizations such as the Judicial
Crisis Network criticizing the process, saying that they, the
Wall Street Journal editorial board, and the conservative
megadonor Koch brothers didn't share "a lot of concern" when
Republicans refused to return blue slips for some of Obama's
nominees.

caption

Grassley and Dianne Feinstein.

source

AP Photo/Alex Brandon

The issue turned hot recently after three Democratic senators
refused to provide blue slips for two of Trump's judicial
nominees.

The first instance
was when Democratic Sen. Al Franken refused to sign off on
Trump's nomination of Minnesota Supreme Court Justice David Stras
for a vacancy on the 8th US Circuit Court of Appeals earlier this
month. Franken said he could not support Stras, nominated by
Trump in March, after studying his record and would not return a
blue slip to the committee.

Franken was followed by Sens. Jeff Merkley and Ron Wyden
later in the same week. The Oregon Democrats announced they
opposed Ryan Bounds, an assistant US attorney, from taking a seat
on the 9th US Circuit Court of Appeals because he had not been
approved by a bipartisan judicial selection committee in their
state.

Trump has an
unprecedented 140-plus vacancies to fill, some of which are
the direct result of Republicans refusing to provide blue slips
to Obama's nominees. And 30 states have at least one senator who
caucuses with Democrats. Though his nominees have received
blue-slip approval from Democratic senators in Colorado,
Michigan, and Indiana, Trump has
so far mostly avoided naming judicial nominees for district
and circuit courts from states represented by at least one
Democrat.

Roughly 80% of Trump's nearly 50 nominees to these courts have
come from states represented by two senators from his party - a
much higher percentage than that of Obama's nominees from such
states at the same point in his presidency. Just five of Trump's
nominees hail from states with two Democratic senators.

Changing the rules

While Grassley has not yet made any conclusive statements on
whether the Judiciary Committee plans to honor the blue-slip
process, he has signaled the rules might change.

Earlier this year, he said on C-SPAN's "Newsmakers" program
that he believes "the blue slip is more respected for
district-court judges historically than it has been for circuit."

"I appreciate the value of the blue-slip process and also intend
to honor it," he said. And a Grassley representative told
The Washington Post earlier this year that Grassley "fully
expects senators to continue to abide by" the tradition.

Should the blue slip be scrapped for circuit-court judges, Trump
would seemingly have free rein to nominate from the more than
half of states where he is likely to face strong opposition.
Since then-Senate Majority Leader Harry Reid in 2013 killed the
filibuster for lower-court nominees in an effort to help push
through more of Obama's choices, judges need just a 51-vote
Senate majority for confirmation.

The Republican 'double standard'

There is evidence that backs up both sides' arguments on the
historical use of the blue slip.
As The Post reported earlier this year, objections by
home-state senators did not block nominations until the 1950s,
when, during the civil-rights movement, Southern senators wanted
more of a say over which judges would represent their states.
They succeeded in getting that say, but only for a short while,
according to a Congressional Research Service report,
which noted that "since 1979, the impact of negative blue
slips has varied as leadership in the Senate Committee on the
Judiciary has changed."

"We've never really had an absolute blue-slip process on
circuit-court judges, so if the Democrats are trying to do that,
that's wrong," Republican Sen. Orrin Hatch, of Utah, a former
Judiciary Committee chair,
told The Hill. A Hatch representative told Business Insider
in an email that the senator "trusts Chairman Grassley's judgment
on current blue slip policy."

Writing in 2014 when Obama was in office, Hatch said
in an op-ed article, "I sincerely hope that the majority will
not continue to sacrifice the good of the Senate and the good of
the country simply to serve short-term political interests."

Indeed,
in 2009, every Senate Republican, which included Hatch and
McConnell, signed a letter to Obama at the start of his term that
laid out their belief in the necessity of consultation with
home-state senators for judicial nominations. The letter also
said senators expected the blue-slip process to be maintained
"regardless of party affiliation."

"Regretfully, if we are not consulted on, and approve of, a
nominee from our states, the Republican Conference will be unable
to support moving forward on that nominee," the letter said.
"Despite press reports that the Chairman of the Judiciary
Committee now may be considering changing the Committee's
practice of observing senatorial courtesy, we, as a Conference,
expect it to be observed, even-handedly and regardless of party
affiliation. And we will act to preserve this principle and the
rights of our colleagues if it is not."

Tobias said there was ample evidence of a "double standard" in
discussion of the blue-slip process, such as when McConnell, who
is now calling for the process to be abolished on circuit-court
nominees,
blocked an Obama nominee by not returning his blue slip.

"Moreover, GOP senators blue slipped many circuit and district
nominees in all eight years of Obama's tenure and Sen. Leahy and
Sen. Grassley as chairs honored all of those blue slips for
circuit and district nominees even when only one senator
objected," he told Business Insider in a subsequent email
exchange Tuesday. "There is no persuasive reason for making an
exception for circuit nominees."

Republican and Democratic senators "agree that they are more
critical than district nominations," he continued, adding that
circuit-court rulings apply to multiple states, make more policy,
and are the courts of last resort for nearly all cases, since the
Supreme Court hears so few.

As for Grassley, Tobias said he had been "very fair" in chairing
the committee. Tobias said that while Grassley was facing a lot
of pressure to make the change on blue slips, he could stall for
a while.

"He has not forced the issue and has many nominees who can
receive hearings in the near term without changing blue slips,"
he said.